Twenty-five years ago, the EU legally enshrined the prohibition of discrimination based on disability in the Employment Equality Directive. A series of posts coordinated by the Berkeley Center on Comparative Equality & Anti-Discrimination Law’s Disability Rights Working Group takes the arrival of this twenty-fifth anniversary as an invitation to reflect on the meaning and scope of this prohibition. After a quarter of a century, what developments have there been in the understanding of disability in European anti-discrimination law? This first post goes into the legislative framework and the evolving understanding of disability-based discrimination in landmark cases of the Court of Justice of the EU (‘the Court’).

In 2000, the EU adopted Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, giving effect to its then recently introduced mandate to combat discrimination based on racial or ethnic origin, religion or belief, disability, age and sexual orientation, next to the existing framework for sex and racial or ethnic origin. The Directive entered into force on 2 December 2000, prohibiting different forms of discrimination based on these characteristics. For people with disabilities specifically, it also enshrined the right to reasonable accommodation (Article 5) and the possibility for member states to take measures “for safeguarding or promoting their integration into the working environment” (Article 7.2). The Directive did not provide a definition of disability, leaving open who would be eligible for its protection, a common and long-standing question where disability and the law interact.

A narrow definition…

In a widely criticized decision in 2006 (Chacón Navas), the Court answered this question  narrowly where the Directive was concerned: a disability was “a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.” (para 43) and which is probable to last for a long time (para 44). An employee who had been dismissed after a period of illness-related absence had invoked the Directive. The Court distinguished situations of sickness from situations of disability, indicating that the protection based on disability does not start to apply “as soon as [employees] develop any type of sickness” (para 46). The Court’s definition emphasized the impairment of the individual as being the cause of disadvantage (rather than society’s interaction with the impairment) and highlighted a need for claimants to be “disabled enough”. It accordingly affirmed a medical model of disability. The UN Convention on the Rights of Persons with Disabilities, which was negotiated around the same time and with the involvement of the EU, precisely chose to move away from this model and emphasize the interaction between impairments and society (Article 1), adopting a human rights model of disability.

…evolving to a broader scope of protection

However, the next years of case law reflected a broadening scope of protection. In the Coleman case (2008) the Court clarified that the protection applies for any discrimination based on disability, regardless of whether the person discriminated against is a person with a disability (paras 48-51). Carers of persons with disabilities or people otherwise associated with persons with disabilities therefore also (mostly, see para 39) qualified for the Directive’s protection. In the Ring and Skouboe Werge case (2013) the Court revised its definition of disability in light of the  UN Convention, which was now an integral part of the EU legal order (para 30). It concluded that “if a curable or incurable illness entails a limitation which results … from…impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’”.

Despite these developments, the reception by scholars and commentators of the Court’s disability-related cases over the next years remained ambivalent, with scholars stating for example that the Court struggled to ‘walk the walk’ of the CRPD’s model of disability or that it excluded certain intersectional experiences of disability. In the last five years and subsequent to most of these criticisms, the Court has had to rule on six more disability-related cases which provide further insights on its approach to disability and the related scope and extent of protection. The next posts will each provide an analysis of one of these cases, giving an indication as to whether the criticisms of the Court’s case law still stand. The concluding post will assess what the last five years of case law have taught us.